Wednesday, May 30, 2007

secular court coercing compliance with religious law - cases of gittin

There is an interesting discussion on volokh.com regarding a Canadian case where a Muslim man’s withholding a religious divorce from his wife was considered aggravating circumstances in evaluating a later crime. Is enhancing punishment for failure to comply with religious doctrine tantamount to secular compulsion to observe religion? Eugene Volokh seems to think so. I don’t buy the argument. Evaluating aggravating circumstance seems to not be a question of compliance with some fixed secular standard, but is more of a subjective assessment or attitude - why not consider whether a person used the rules of a religious system to bring harm to another in making that determination? Anyway, Volokh draws a comparison to the NY Get Laws, which he thinks also amount to coercion by the State – I don’t know enough to opine whether the Get Laws violate church-state separation (see here), but coercion by secular court does pose halachic problems (see here).

Someone commenting on the issue tried to distinguish a get from a religious ritual. I am reminded of one of the stupider points (and there were many) made by “Rabbi” Irwin Kula in his book “Yearnings”. Kula claims that some people remain trapped in bad marriages because they see marriage as a sacred bond that is holy. He counsels that Judaism, unlike other religions, holds that divorce can be a sacred experience as well, because it is effectuated by a “holy document”, meaning a get. A get or kesubah is no more holy than a contract to buy a house or car. In fact, I have always wondered, artwork aside, why people hang kesubos on their walls - I have never seen a deed to a home hung on the wall, or a bill of sale for a car. If laypeople knew what they were really getting into by signing a kesubah, they would realize it would be better to have a lawyer by their side rather than a rabbi who is thinking of “holy” documents.

On the same topic, see this article from a few months ago on a bill that was narrowly defeated in Maryland which would have forced husbands to grant a get (similar to NY Get Law). Supporters framed the bill as a women’s rights issue, designed to insure that a woman is fairly granted the right to remarry, while opponents objected on church-state grounds.

3 comments:

  1. So should I have had a lawyer negotiate better kesuba terms? ;-) It is a contract, but I think that very few people getting married actually think about what the stipulated amounts mean or would translate into in today's currency. Divorce settlements are likely to be higher than ktuva amounts.

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  2. Yes, in the days of chazal better kesubah terms were negotiated, tosefes kesubah being the obvious example. The Mishna in Mesubos even says that the kohanim raised the bar and demanded higher payment to marry a girl who was meyucheset. On jlaw there is an article by R' Bryde that discusses te value of kesubah as well as questions of enforcability in secular court.

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  3. Mike S.11:19 PM

    I have a print of a ketubah from Calcutta on my wall. The sum is for 17,555 gold rupees, which I am sure is far more than Ma'atim. (I can't make out the date, but it is some time in the last 567 years [I can make out the 5000 and the word Ma'ot in the date]) So the practice continued.

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